Over the next two months, in my free time, I am researching & writing an article for publication in an academic journal about commercial negotiation skills & strategies. This exercise is a foundation & prelude for a 1 hour online talk I am presenting at 4pm GMT on Thursday 24 October 2024, to members of the SCMA worldwide (scmastandards.com). The talk is about ‘Mediation Advocacy in Trust & Estate Disputes.’ This is also a rare opportunity to update my negotiation skill set by innovating new negotiation techniques for use in settling probate disputes. Today I am completing the reading of the latest book by William Ury – ‘Possible.’ One of the key negotiation concepts and techniques discussed in the book, is how to ‘Engage the Third side.’ The idea at the centre of this technique is to think ‘Win-Win-Win.’ As Professor Ury writes on p.216 of his book, ‘[We] need to take a big step beyond our previous thinking about “win-win”. From “win-win” we need to move to “win-win-win”. We need to think in terms of a third win – a win for a larger community, for the future, for our children. This third win catalyses and sustains the efforts of the third side over the long term.’ I agree. In a probate dispute a ‘win-win-win’ scenario is not only: (i) preservation and expansion of the capital value of the estate for the benefit of future generations, through tax-efficient and retrospective post-death estate planning within the available time window; but also (ii) the survival and continuation of a family owned business. That requires the preservation of relationships, networks, and maintenance of liquidity, which in turn requires competent professional governance. William Ury has mediated every kind of dispute from probate/business succession disputes to ceasefires, and was the imaginative ‘brain’ behind the meeting which eventually took place between President Trump and Kim Jong Un, in Singapore, following which the risk of a nuclear conflict occurring between the US and North Korea dropped from 50% to less than 1% (see p.199 of the book). I have today also reposted two posts I wrote on Sunday about mediation advocacy i.e. negotiation. The negotiation techniques each post illustrates are explained in my comments below. I will expand upon these techniques in the article and talk.

• ‘Mediation of Yacht Building Disputes.’ – In order to prepare, first think backwards from your planned destination. This is where in the course of the negotiation you want to persuade your opponent to move towards, i.e. it is the deal-making zone (‘DMZ’) based upon your lay client’s settlement range and BATNA. This is why I use a Work Breakdown Structure (‘WBS’)as an intellectual  tool for settling disputes. At the apex of the WBS is the optimal boundary of my lay client’s settlement range. I work backwards from that, so that I can see the entire terrain and plan a road-map for how to get my opponent to voluntarily move toward, and eventually into, my client’s DMZ.
• ‘The paradigm of a “store of value” in Mediation’ – In order to help the mediator, you need to prepare your lay client to be open and frank with the mediator about what he values, needs and prioritises, and why. The mediator may then have a ‘light bulb’ moment, when he suddenly realises that either: (i) P.1 only wants the orange peel, whereas P.2 only wants the orange pulp, or (ii) that because the wishes, needs and priorities of P.1 and P.2 are asymmetrical, that counter-intuitively, they can nevertheless be reconciled. The method of reconciliation involves both P.1 and P.2 seeing the prized asset over which they are competing, not as a ‘thing’, but as a ‘store of value’, which can be shared. In which case, it may be possible to design a bespoke solution to the problem of reconciling their competing and potentially conflicting claims and priorities, by restructuring the legal and beneficial ownership, management and control, use, enjoyment and commercial exploitation of the asset, to their mutual advantage.

‘Mediating an estate dispute where a treasured family yacht is a prized asset.’

This was a one hour challenge, based on a real-life scenario, gamed out in a Society of Mediators members Training Day in December 2021, in which delegates, including myself, tested and developed our mediation skills and techniques.

I applied the ‘orange peel’ v. ‘orange pulp’ (‘Getting to Yes’) concept, to listen to and understand what each participant (‘P’) actually valued, needed and prioritized.

The tools available to the P’s for enlarging and dividing such an ‘asset’ pie, include the options of: (i) keep the yacht in the family; (ii) sell it; (iii) lease it; or (iv) innovate a ‘creative’ and bespoke family: ownership; control; and use structure, whereby legal title and/or beneficial ownership of the asset would be transferred to P.1. on terms which enabled P.2 to enjoy the use of the yacht for e.g. one month a year. Compare a ‘time-share’ lease arrangement. I would later develop and apply this idea in my article: ‘Back to the future’ – Part 2 – Mediation and Estate/Business Succession Planning’ published by Tolley in Taxation, 08.03.2022. In the article, which was about using Mediation as a tool for life-time estate and business succession planning, I wrote:

‘If an international business family does not know how to start an inter-family discussion about how to put their house in order before a monumental event occurs – such as loss of capacity or death of the head of the family – a pre-emptive process of mediation can be used to create a safe space in which
each key family member is empowered to:
● voice their individual needs, concerns, hopes, expectations and priorities to a non-partisan and beneficially disinterested person, who is bound by confidentiality and has the soft skills to talk to each of them; and
● speak through the mediator, to a multi-disciplinary team of professional advisers around the world, appointed by the family office.
They can then discuss, develop, and agree bespoke and innovative solutions to the problem, ie a holistic strategic plan and roadmap for practical implementation. For example, where participants in a mediation adopt the paradigm of a “store of value” to perceive and reconfigure the attributes and
worth to each of them of a luxury asset, and the wishes, needs and priorities of each participant are asymmetrical, it may be possible to design a bespoke solution to the problem of reconciling their competing and potentially conflicting claims and priorities, by restructuring the legal and beneficial ownership, management and control, use, enjoyment and commercial exploitation of the asset, to their mutual advantage.’

This original idea of creating in the mind/consciousness of each P, the ‘paradigm of a “store of value” …’ was the ‘light-bulb’ moment I had when I mediated the ‘Yacht dispute.’

In principle there is a design element in the whole spectrum of yacht (‘Y’) building activities, ranging from concept design to appearance, functional criteria, detailed design, choice of materials and methods of work. Unspecified design work inevitably results in consequences which are only realised following construction. The combined impact of unspecified design work in aggregate can result in radical changes in the:
 ·      Planned and priced volume of materials incorporated in the yacht (‘Y’).
 ·      Specified deadweight tonnage (‘DWT’) of Y.
 ·      Specified speed and fuel consumption of Y.
 ·      Specified meta-centric height of Y.
 ·      Stability and trim of Y.
Consequently the yacht delivered by the yard on completion may be materially non-compliant with the yacht building contract. The performance of unspecified design work inevitably results in the incurrence by the Yard of extra man-hours and materials in carrying out the unspecified work, and subject to critical path impact and programmed float, in delay and disruption.
So, why mediate such disputes?
What the owner requires is a yacht which matches his needs.
What the yard needs is the time and money to deliver this.
The litigation/arbitration risks and costs in a boat building dispute can exceed the value/cost of performing the necessary extra work.
So, why not do a deal instead, by focussing on the problem, and working together to solve it, i.e. by scoping and pricing what needs to be done, and then entering into a ‘principled’ negotiation about how this additional cost is to be allocated, i.e. borne, between the owner and the yard?
Here there is a real benefit in preserving an ongoing commercial relationship, unless the yard goes out of business. The opportunity for doing a creative deal which satisfies the underlying commercial interests of each side, and which a judge does not have the power to impose, is only limited by the imagination of the parties’ legal representatives. In the experience of the author, these disputes invariably settle. So, why not think constructively from the outset about what needs to be done, and how and when that work can be performed, in order to get the yacht on the water without further delay and disruption? That is potentially a win/win scenario.
See also my International Conference Paper presented to the Royal Institute of Naval Architects in London about the ‘Legal and Commercial Consequences of Performing Unspecified Design Work in Ship-Conversion Projects’. You can download this on the ‘Publications’ page at www.carlislam.co.uk .

Note also – ‘ All seagoing vessels registered in the UK are assigned to a specific class, which defines their type of permitted use, determines which certification they must hold and specifies the inspection and survey regime required to comply with this certification. These classes are established and assigned by the Recognised Classification Societies, who also approve surveys and inspections.’ Google – Vessel classification and certification – GOV.UK (www.gov.uk). This states:
‘Large commercial yachts are defined as those vessels which are:
in commercial use for sport or pleasure 24 metres load line length or more or over 150 gross tonnes if built before 21 July 1968 carry no cargo and no more than 12 passengers are in commercial use for sport or pleasure

Certification for large commercial yachts.

The certificates that large commercial yachts must carry vary according to their gt. Further information on this can be found in Section 28 of the Large Commercial Yacht Code. You can download MSN 1792 (M) Large Commercial Yacht Code (LY2).’

As an example, the following is a methodology I developed years ago for a hypothetical major project dispute. The list of acronyms is set out below the Methodology:
(i) Factors:
‘S&T’ = Suspension (i.e. to avoid Liquidated Damages (‘LD’s’) and for non-payment) and Termination for (RA and non-payment).
 ‘RA’ = Risk analysis (including political risk; force majeure [‘FM’]; liability for latent defects; liability for unlimited consequential loss; and taxation e.g. if a permanent establishment is created onshore).
 ‘V’ = Variations (entitlement to extra time and costs e.g. for a change in specification; FM etc).
 ‘WBS’ = Work Breakdown Structure.
(ii) Equation:
Based upon S, input CPA into WBS = P.
Adjust P to account for: F; LD (insurance premiums); PB (cost); and RA = expected and planned Net profit (‘NP’).
 Identify the gap between P and EURCO = ‘PEG’.
Adjust the PEG to account for V = Adjusted commercial outcome (‘ACO’).
The gap between ACO and NP is the deal-making zone [‘DMZ’]. The question then, is how to close the gap, e.g. by enhancing EURCO through specification (including time, design and materials changes), and project management efficiency/savings.

(iii) Accronyms:

‘CPA’ = Critical Path Analysis.
‘F’ = Float.
‘ERUCO’ = Expected revenue following commercial operation.
‘LD’ = Liquidated damages.
‘M’ = Margin (calculated by reference to project costs – which may be reduced if the time and money incurred in negotiating contracts can be reduced through mediation).
‘P’ = Price.
‘PB’ = Performance bond.
‘S’ = Technical specification (including completion date).
‘S&T’ = Suspension (i.e. to avoid LD’s and for non-payment) and Termination for (RA and non-payment).
‘RA’ = Risk analysis (including political risk; force majeure [‘FM’]; liability for latent defects; liability for unlimited consequential loss; and taxation e.g. if a permanent establishment is created onshore).
‘V’ = Variations (entitlement to extra time and costs e.g. for a change in specification; FM etc).
‘WBS’ = Work Breakdown Structure.

If you are wondering how I developed this idea and methodology, during the 2nd year I worked in-house for Rolls-Royce, negotiating major projects in the Far East, and as a reward for the part I played in negotiating a major project contract awarded by a state utlity in Malaysia to my subsidiary of Rolls Royce, I undertook and successfully completed a one-year part-time training course provided by Rolls-Royce in-house, to its Project Managers of Major Projects around the world. I was a solicitor at the time, and Company Solicitor of the Rolls-Royce subsisdiary which had been awarded the multi-million pound contract in Malaysia. As far as I am aware, I was the first lawyer in the history of Rolls Royce, to undertake this training course. Two years later, I was recruited by Alstom to work in Paris. When I talked to my French colleagues about using a work breakdown structure in order to prepare for the negotiation of a major project they had no idea what I was talking about. During that time I also used the concept of WBS mapping, as a tool in settling commercial contract disputes, including a major project dispute with a utility in Iran.

‘Possible is the new yes’, is the idea at the heart of William Ury’s most recent book – ‘Possible – How We Survive (and Thrive) in an Age of Conflict’ (2024). William Ury is the co-founder of Harvard’s Program on Negotiation. He is one of the world’s most influential living experts on negotiation and collaboration. When I used to work as a contract negotiator in-house for Rolls-Royce & Alstom (in Paris), I carried with me to major project negotiations in India, Malaysia, Japan, South Korea, and China, a hard-back Notebook, in which I had written down key ideas discussed in ‘Getting to Yes’ (which was co-written by the late Professor Roger Fisher & William Ury).  

I had the honour of meeting Professor Fisher during a short academic visit to Harvard in April 2002 (see the ‘International Cultural Heritage Law & Dispute Settlement’ page at www.carlislam.co.uk).

During what became a conversation which lasted over two hours, I mentioned that since my first multi-million pound power project contract negotiation in Kuala Lumpur – when I was just 27, I had applied the techniques set out in ‘Getting to Yes’ with great success, and had also developed a few insights into the dynmaics at play in ‘high-stakes’ negotiations. I learned, that to be trusted and taken at your word, i.e. believed, you never bluff. This means that your superiors must be ready to do what you are saying. In his new book, William Ury writes:

‘When Roger Fisher, Bruce Patton, and I worked on Getting to Yes more than 30 years ago, “yes” meant a mutually satisfactory agreement. Today, I believe that the meaning of yes must be expanded. The new yes means to lean in and embrace conflicts for all they have to offer. The new yes is a transformative yes. If we can embrace and transform our conflicts, we can learn how to live and work together. And if we can do that … there is no problem, large or small, that we cannot address.’  

Over the next four weeks I am carrying out research for a new article I am writing for publication entitled – ‘Mediation Advocacy in Trust & Estate Disputes.’ Mediation advocacy is negotiation conducted by a legal representative, that is facilitated by a mediator. I am going to write this through the lens of ‘Transformative mediation’ = ‘Transformative negotiation’, i.e. that there is a dynamic synergy between the two. The challenge I must think about as a ‘Mediator’ (‘M’) & ‘Negotiator’ (‘N’), and the thought experiment I will have to invent, to test the answer, is how can M and N help each other to transform a dispute into a problem-solving opportunity. This requires analysis of potential road-blocks, & of how N can help M, to engage N’s opponent, in a constructive problem-solving conversation with N, through M.

I would welcome any comments you can contribute, about your own experience of negotiating disputes in mediation.

I am currently writing-up Chapter 3 (Probate Disputes), and today completed the section about ‘Want of execution.’ When I researched this chapter earlier in the year, I came across a general evidential point in relation to the judicial approach advocated in ‘Gestmin.’ This is of general application in relation to the ‘memory’ of witnesses. The following is a very brief extract from the current draft of paragraph 3.2.2 (Necessity for strict compliance) of the book:

‘In Gestmin SGPS S.A. v. Credit Suisse (UK) Limited, Credit Suisse Securities (Europe) Limited [2013] EWHC 3560 (Comm) … Leggatt J drew attention to the fallibility of human memory and the usefulness of oral testimony, observing that: …

The best approach for a judge to adopt in the trial is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.’
See also Chapter 5 (Litigation) paragraph 5.3 below, and CXB v. North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB) at [3] to [10] (approved in Kogan v. Martin [2019] EWCA Civ 1645, in which Floyd LJ stated at [88] that, ‘a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all the evidence.’
What constitutes the ‘strongest evidence’ in any particular case will depend on the totality of the relevant facts of that case, and the court’s evaluation of the probabilities. The court must look at all the circumstances of the case relevant to attestation. The more probable it is, from those circumstances, that the will was properly attested, the greater will be the burden on those seeking to displace the presumption as to due execution to which the execution of the will and the attestation clause give rise. Accordingly the higher will be the threshold to be crossed to meet the requirement of showing the ‘strongest evidence’, and the stronger that evidence will need to be. Likewise, if the evidence of due attestation is weak, then the burden of displacing the presumption as to due execution may be more easily discharged and the requirement to show the strongest evidence satisfied.

Draft Chapter 3 currently runs to 82 pages, and today I have completed the writing-up of 18 of those pages. The next section I am writing-up, which is a personal favourite, is – ‘Lack of testamentary capacity.’ So – back to the book!

My article – ‘Golden rule in commercial mediation’ was published in the Law Society Gazette online 13.05.2024. To read it, simply google the words – ‘Golden rule in commercial mediation + Law Gazette.’ I have also posted a link to the article on the ‘Publications’ page at www.carlislam.co.uk

Link: Golden rule in commercial mediation | Law Gazette

30 minutes ago, I completed the writing-up of draft Chapter 4 – ‘Associated claims’, of the 2nd ed of the Contentious Probate Handbook, for publication by the Law Society of England & Wales, and submitted it to my editor. The chapter runs to 19,730 words = 79 A4 pages of manuscript. In re Thompson’s Will Trusts; Dryden v Young [2024] EWHC 1095 (Ch), HH Judge Davis-White KC, provided a comprehensive summary of the principles that govern the approach of a court of construction to the interpretation of a will. This, along with other recent cases in relation to: substitution & removal of executors; construction & rectification of a will; family provision; & proprietary estoppel claims (including Winter v. Winter [2023] EWHC 2393 (Ch)), together with references to civil procedure and practice set out in the latest edition of the Chancery Guide, are all discussed. Next, I will turn to the writing-up of Chapter 2 – ‘Preliminary steps’, which will include a detailed and updated discussion of ‘caveats’. I am aiming to complete the 1st draft of that chapter within the next 14 days. So back to the book! Activate to view larger image,

I have broken off from writing the 2nd ed of the Contentious Probate Handbook for the Law Society for 30 minutes, to mention that the editor of the Law Society Gazette has just informed me that my article ‘Golden Rule in Commercial Mediation’, will be pusblished online in the Law Society Gazette either tomorrow or on Monday. This is my 2nd article for the LSG over the last 6 months. My previous article was entitled ‘Commercial Mediation of Music Disputes.’ Just Google those words to find it. The LSG has given permission to the CMC to republish that article on their website, to a worldwide audience. I am currently wriritng the Costs Chapter of the book, and by Sunday will have completed the draft chapter for submission. I will then have written-up almost half the book. As I have been writing the book, I have discovered significant changes in the law, procedure and practice in relation to these claims, and following publication will offer the LSG a series of short articles as updates for solicitors. Now back to the book!

In Leonard v Leonard (2024 EWHC 321 Ch) [149] to [157] Mrs Justice Joanna Smith provided a useful summary of the key legal principles:

(i)          It is not the law that a person suffering from reduced cognitive abilities owing to a mental illness has no testamentary capacity.
(ii)         The enquiry is whether, the deceased testator’s [‘T‘s’] mind is so unsound that [T] ‘cannot understand what he is about … or his ability to make a rational decision is absent’ (Gardiner v Tabet [2021]).
(iii)       The Banks test concerns the ability or capacity to understand the matters identified therein. It does not require actual understanding or recollection and it is not to be equated with a test of memory.
(iv)       There is no requirement that T actually remembers the extent of his property & deficiencies of memory are not the equivalent of incapacity.
(v)        When considering testamentary capacity, the court is concerned with the ability to make decisions, not merely the ability to understand a given transaction, or a particular choice that has already been made, which are issues to be considered under ‘knowledge and approval’ (Perrins v Holland & Simon v Byford [2014].
(vi)       When evaluating limb 2 of the Banks test, there is no need for T to be able to compile a mental inventory or valuation of all his assets disposed of by his will, but merely to have ‘a general idea’ of those assets (Todd v Parsons [2019].
(vii)     T does not lack testamentary capacity because he is mistaken about, or fails to ascertain full details of his property (Minns v Foster Ch, 13 December 2002 (unreported)).
(viii)    Furthermore, there is no need for knowledge of the actual value of assets (Blackman v Man & Schrader v Schrader [2013]).
(ix)       When evaluating limb 3 of the Banks test, T must have capacity to comprehend the nature of the claims of others, whom by his will he is excluding from all participation in his property.
(x)    The question with which the court is concerned when considering the Banks test is transaction and issue specific. T must have the mental capacity (with the assistance of such explanation as he may have been given) to understand ‘the particular transaction and its nature and complexity’ (Hoff v Atherton & Hughes v Pritchard). This would appear to encompass not only the complexities in the will itself (limb 1), but also the complexity of T‘s property (limb 2) and of the moral claims on his estate (limb 3).
(xi)  The 4th limb is a separate element.
(xii) In Sharp v Adam, the Court of Appeal observed that, with reference to the 4th limb, the judge could have asked ‘whether [T’s] human instincts and affections, or his moral sense, had been perverted by mental disease,’ & observed that the 4th limb is ‘concerned as much with mood as with cognition’. It is in this way that it is to be distinguished from the previous 3 limbs, which are purely concerned with cognition.

I will of course discuss this case along with recent cases about Undue Influence and Lack of Knowledge and Approval, in Chapter 3 – ‘Probate Claims’ of my forthcoming book for the Law Society – the 2nd Edition of the Contentious Probate Handbook. This will be my 8th book. I am going offline from LinkedIn for the next 3 months, to focus of completing the writing of the 1st complete draft of what is looking like a 400 page book. Ellen Radley – who is one of the world’s leading forensic document advisors, and Dr Hugh Series (Oxford University) – who in my opinion is the UK’s foremost expert on testamentary capacity, are each kindly contributing Practice Notes which will appear as Appendices about: (i) Forensic Examination of Handwriting; and (ii) Mental Disorders, respectively. By the end of this week I will have completed the writing of around 50% of the book. So, it is now time for me to return to life as a hermit – well at least until mid-July!

The following is a brief extract from Chapter 5 – ‘Litigation’, of my forthcoming 400 page book – the 2nd Edition of the ‘Contentious Probate Handbook’. I am currently on schedule to complete the drafting of Chapter 5 for submission to my editor in 3 days time. I will then have completed the first draft of around 1/3rd of the book. I am on schedule to complete the book before my Birthday on 22 July:

5.3.5 Evidence

The general rules of evidence apply in probate claims subject to special rules about:
       (a)      admissibility; and
       (b)      the evidence required to prove particular matters, i.e. due execution, revocation, testamentary capacity, knowledge and approval, undue influence and fraud. …

In a contentious probate case, the guiding principle is that a witness should give evidence in his or her own words on issues in the case in relation to which his evidence is likely to assist the court, and nothing else. See also paragrapah 5.8.6 – ‘Reality-Testing’, below. …

‘Recent authorities about how a judge should approach the finding of a fact are: The statement of Legatt J (as he then was) in the commercial case of Gestmin v. Credit Suisse [2013] EWHC 3560 (Comm) … that ‘the best approach for a judge to adopt in the trial of a commercial case is, in my view, the place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations and to base factual findings on inferences drawn from the documentary evidence and known or probable facts’ has attracted criticism: see CXB v. North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB) at [3] – [10] approved by the Court of Appeal in Kogan V Martin [2019] EWCA Civ 1645. In the latter case, Floyd LJ stated at [88] that ‘a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all the evidence.’ …
(Tristram And Coote’s Propbate Practice. Thirty-Second Edition (2020), by PR D’Costa, P Teverson and T Synak, Lexis Nexis, Paragrpah 39.18, Footnote 3). …

Where, as is often the case, facts relating to the making and execution of a will are solely in the knowledge of one party, e.g. where a testator drafted a home-made will under the terms of which he gifted assets to a person who was living with him, then the making of an application under CPR Part 18 for further information may be necessary. In which case, the author would argue that it is appropriate to make an interim application at an early stage in the proceedings, i.e. at or before the first CMC.

Part 7 probate claims are inherently fact-sensitive, often culminating in a decision being made about which of the parties’ conflicting accounts is more probable than not. … The credibility of the witnesses of fact and consequently the weight attached by the judge to their evidence, will often be a determinative factor in reaching an overall conclusion prior to judgment.

Well at least that is what it says on the sign in my office!

Advocacy is about ‘persuasion’ in the non-Godfather Part 1 sense of the term. That takes patience, preparation and skill. So does ‘persuasion’ in Mediation Advocacy. However, this takes the form of ‘negotiation’ – which involves a completely different approach and skill set – you are not trying to win. You are trying to do a deal. So, I have included the following recommended reading list at the end of the ADR Chapter in the 2nd Edition of the Contentious Probate Handbook, which I am currently writing for the Law Society of England and Wales:

10.5.3       Further reading
In order to develop your mediation advocacy skills, the author recommends the following publications:

‘Thinking in Bets – Making Smarter Decisions When You Don’t Have All The Facts’, by Annie Duke (2018), Portfolio/Penguin.

‘Negotiating the Nonnegotiable – How To Resolve Your Most Emotionally Charged Conflicts’, by Daniel Shapiro (2017) Penguin Books.

‘Negotiating the Impossible – How To Break Deadlocks And Resolve Ugly Conflicts (Without Money or Muscle), by Deepak Malhotra (2016), Berrett-Koehler Publishers, Inc.

‘Never Split The Difference – Negotiating as if your life depended on it,’ by Chris Voss (2016), rh Business Books.

‘Negotiation Genius – How to Overcome Obstacles and Achieve Brilliant Results at the Bargaining Table and Beyond’, by Deepak Malhotra and Max H Bazerman of Harvard Business School (2008), Bantam Books.

‘Building Agreement – Using Emotions As You Negotiate’, by Roger Fisher and Daniel Shapiro (2007), rh Business Books.

‘Thinking fast and slow’ by Nobel Laureate in Economics – Daniel Kahneman (2011), Allen Lane.

‘Beyond Machiavelli – Tools For Coping With Conflict’, by Roger Fisher, Elizabeth Kopelman, and Andrea Kupfer Schneider (1996), Penguin books.

I will be discussing ‘negotiation’ mindset and skills in a talk that will be broadcast worldwide at 4pm GMT on Thursday 24 October 2024, in a one hour online seminar for the SCMA.

Prior to entering private practice, I worked in-house for Rolls-Royce and Alstom (in Paris) drafting, and negotiating deals in multiple jurisdictions around the world (principally in the Far East, including China, Japan, South Korea, Malaysia, and India), and resolving international commercial disputes. As a Mediation Advocate, I approach doing a deal in settlement of a commercial dispute with the benefit of that commercial experience and can apply a degree of ‘nous’. As a Mediator, I can also use my ‘commercial’ antennae to help parties re-frame their dispute as an opportunity.

For anybody who is interested in the study, teaching and practice of ‘International Dispute Settlement’, at the foot of the ‘International Dispute Settlement’ page at www.carlislam.co.uk, I have also set out a Research Bibliography for my next book, ‘International Dispute Settlement’ – which I will start to write in 2025.

My copy of ‘Beyond Machiavelli – Tools For Coping With Conflict’ was handed to me and signed by the late Professor Roger Fisher at the end of a two hour one-on-one conversation with him, in his study at Harvard Law School, during a short research visit as a Scholar from King’s College London to Harvard University in April 2002. His parting words to me were:

‘Appreciate their point of view. Understand it. It is very important to appreciate the way they see it. Even if you don’t agree, say that it merits serious consideration. Don’t say that they are wrong. Appreciate their self-esteem. Acknowledge that the other person has been heard. Be prepared to argue their case better than they can before you answer it.’

As an SCMA Accredited Mediation Advocate and CMC Registered Mediator, I abide by the wisdom of Professor Fisher. This is how you achieve a ‘break-through’ moment in any negotiation/Mediation. I commend his books to all students and practitioners of Mediation and International Dispute Settlement.